One size does not fit all

  • April 19, 2022
  • Jody Berkes

I was a husky kid who grew up into a husky adult. For those of you who are blissfully unaware, husky is a euphemism for fat. The biggest lie told to husky kids is clothing with the “one size fits all” label. At best, whatever garment is presented enormous, fitting like a medium size tent, baggy, shapeless, and way too much for you. At worst, you are stuck trying to stretch a tiny garment to fit a husky scenario. The results, as evidenced by certain high school photos of me, can be truly horrific. In other words, in no case does one size fit all.

The legal equivalent to the one size fits all clothing is the mandatory minimum sentence. At best, the punishment somewhat addresses the need to for denunciation and general deterrence. I say “somewhat” because a random number of months or years never really addresses the specific aggravating features of a sentence. At worst, the mandatory minimum punishment is truly excessive, the months or years of the sentence ignoring any mitigating factors and far outweighing the aggravating factors present in the offence.

Bill C-5 is the first tentative step in addressing the one size fits all approach to mandatory minimum sentence. The Bill provides a judge the discretion to sentence in an individualized manner that encompasses denunciation, deterrence, a sense of responsibility, rehabilitation, and restorative justice. In other words, to quote a member of Parliament, “Showing kindness to people, regardless of their station in life, affirms the human dignity that is inherent in all of us.”1 That being said, eliminating a mandatory minimum sentence does not mean that those who commit offences that demand a jail or penitentiary2 sentence will not get them. It just means that where the offence does not require a sentence of incarceration, the law will not demand it.

Ironically, the same MP who advocated showing kindness to others regardless of their station, suggests that Bill C-5 is somehow soft on crime and, “It would do nothing more than reduce punishments, and truly reduce accountability, for perpetrators of violent gun crimes and drug dealers.”3 At best, this is cynical, inflammatory rhetoric designed to trick people into believing that giving discretion to judges will somehow open the floodgates to a Dickensian frenzy of marauders roaming our streets, pillaging at will. At worst, it is a truly ignorant view of what goes on in sentencing courts throughout this country.

The truth of the matter is that Bill C-5 will do NOTHING to reduce the accountability of violent gun crimes and drug dealers. These people already go to jail, and generally for longer than the mandatory minimums. After passage of the Bill, they will still go to jail for the same amounts of time they did before the bill passed. What Bill C-5 will do is allow appropriate sentences when necessary to show mercy to people, regardless of their station in life, which will affirm the human dignity inherent in all of us. Please stop with the rhetoric and let’s move Bill C-5 forward.

Jody Berkes is a criminal defence lawyer who enjoys relaxed fit clothing. His views are his own, although he kind of thinks they are views others should adopt.

End notes

2 Jail sentences are less than 2 years and penitentiary sentences are more than 2 years